[2009] KEHC 3111 (KLR)
The court found that the evidence of the plaintiff as PW1 was unclear and required clarification. Exercising its discretion under Section 146(4) of the Evidence Act, the court ordered that the plaintiff be recalled for further examination in chief. The court further directed that the defendant would have the right...
Source-derived case information.
- Citation
- [2009] KEHC 3111 (KLR)
- Parties
- Plaintiff: Wilson Changtoek; Defendant: David Kipngeno Ngetich
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 65 of 2002
- Procedural Posture
- Land Case / Ruling on Recall of Plaintiff for Further Examination
- Outcome
- Plaintiff to be recalled for further examination in chief; defendant to have right of cross-examination and to call further evidence if necessary.
- Legal Topics
- Recall of Witness, Clarification of Evidence, Order Xvii Civil Procedure Rules, Examination in Chief, Cross Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Changtoek
Plaintiff
David Kipngeno Ngetich
Defendant
Procedural Posture
Land Case / Ruling on Recall of Plaintiff for Further Examination
Legal Issues
- 1 Whether the plaintiff's evidence as PW1 was sufficiently clear for the court to proceed to judgment.
- 2 Whether the court should exercise its discretion to recall the plaintiff for further examination in chief under Section 146(4) of the Evidence Act.
Ratio Decidendi
The court found that the evidence of the plaintiff as PW1 was unclear and required clarification. Exercising its discretion under Section 146(4) of the Evidence Act, the court ordered that the plaintiff be recalled for further examination in chief. The court further directed that the defendant would have the right to cross-examine the plaintiff and, if necessary, to adduce further evidence through their witnesses. This approach ensures that the record is clear and that both parties have a fair opportunity to present their cases, in accordance with the principles of natural justice and procedural fairness.
Court Disposition
Plaintiff to be recalled for further examination in chief; defendant to have right of cross-examination and to call further evidence if necessary.
Orders
- PW1, the plaintiff, to be recalled for further examination in chief.
- Defendant to have the right to cross-examine PW1.
Full Case Text
Judgment text and source record
29 paragraphs
1. Land Law
2. Civil Practice and Procedure
a) Order XVII r 10 Civil Procedure Rules
b) Part heard of Kimaru J of land matter
c) Trial of plaintiff heard and completed
d) Only defence hearing left
e) Order XVII Civil Procedure Rules hearing proceeding from where it left.
f) Evidence of Plaintiffs unclear.
3. Ruling that the plaintiff be recalled to clarify his evidence
4. Case Law – nil.
5. Advocates
K.C. Wanderi advocate instructed by the firm of M/S Wanderi & Co. advocates for the Plaintiff – present
J.R. Kimetto advocate instructed by the firm of M/S Bett & Co. advocate for the defendant – present
WILSON CHANGTOEK ………………………......……………….. PLAINTIFF
VERSUS
DAVID KIPNGENO NGETICH ……………..……......…………. DEFENDANT
RULING
I: Civil Practice and Procedure
1. This is a long dispute on the issue of land. The trial was begun and heard before Kimaru J on 24th July, 2006. The Plaintiff and his witnesses gave evidence. He closed his case.
2. The Hon. Judge left this station and the file coming before me for further hearing, it was agreed by parties that the evidence proceed from where it was left off Order XVIICivil Procedure Rules.
3. The defence hearing was heard.
4. On going through the proceedings it transpired that the evidence of PW1 the Plaintiff was unclear and needed to be clarified.
5. This court under the Evidence Act Section 146(4) Cap 80 orders that PW1 be recalled to be examined in Chief further. The defendants will have a right to cross –examined PW1 and the right through the court to counter-act evidence through their witnesses if need arise.
DATED this 9th day of June, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
K.C. Wanderi advocate instructed by the firm of M/S Wanderi & Co. advocates for the Plaintiff – present
J.R. Kimetto advocate instructed by the firm of M/S Bett & Co. advocate for the defendant – present